B.C. Supreme Court Chief Justice Robert Bauman ruled Wednesday that Canadian laws which limit religious freedom can be upheld if it is felt by the court that the harms in question outweigh that freedom. In fact, the ruling broadens the ways in which the Canadian Charter of Rights and Freedoms can be limited overall. This is a provincial court ruling, and could still be appealed to the Supreme Court of Canada, but it’s the highest court ruling to date on polygamy in Canada.
That’s probably the least-noticed aspect of the provincial court’s judgment regarding polygamy and polyamory in Canada, and it makes it weirdly ironic that faith-based news websites are cheering this as a victory… although they have to deliberately omit (which wouldn’t be the first time) the judge’s discussion of freedom of religion, in the process. It’s amazing how quickly some can be willing to abandon the cause of “religious freedom” when it’s someone else’s religion in question.
But given that the same folks are seeking ways to reopen the debate about same-sex marriage in Canada, there has been anticipation of this ruling providing ways and language to do so. And indeed, in this decision, there’s something for everyone — but I’ll have to discuss the likely coming epidemic of Canadian-driven “medical studies” to do things like allege connections between lesbianism and cervical cancer, gay parents with bullying (etc.) at a later date. For now, this ruling speaks specifically to polygamy and polyamory.
Religious and Charter Freedoms can be Limited in Canada if the Court Perceives Harm.
In his 335-page decision, Bauman agreed that banning polygamy infringed on religious freedom, but wrote, “In my view, the salutary effects of the prohibition far outweigh the deleterious. The law seeks to advance the institution of monogamous marriage, a fundamental value in Western society from the earliest of times. It seeks to protect against the many harms which are reasonably apprehended to arise out of the practice of polygamy.”
Winston Blackmore and James Oler were charged with polygamy in 2009, but after a judge stayed the charges, the province referred the case to the B.C. Supreme Court. Blackmore (who was said to have 19 wives or more) and Oler (who was said to have three) were at the centre of the polygamous Mormon community in Bountiful, B.C. and the abuses and exploitation of women and children that were said to occur there were seen as significant enough harm to limit the Mormon sect’s religious freedom.
And certainly, spousal abuse, coercion, exploitation of minors, human trafficking (stemming from cross-border bride exchange that was happening between polygamous families) all certainly need to be addressed in law. And they are. Polygamy laws provide a mechanism to intervene in instances where abuse and exploitation is suspected, but that’s the only thing it provides that other legislation currently doesn’t.
“Important tenets of the polyamory movement are that it is sex positive and all relationships are consensual…”
Because of the way Section 293 of the Criminal Code of Canada is worded, Canada’s polygamy law does not simply ban polygamous marriages, but polyamorous repationships, as well. Wednesday’s ruling sets out some guidelines on how the law should be applied, and Bauman’s conclusion that banning ethical polyamory is an unreasonable infringement on freedom creates a comfort zone for poly relationships. Which is important, because more of us have the capacity for polyamory than we realize.
The Canadian Polyamory Advocacy Association was largely happy about the decision, saying that Bauman read the law in a way that “does not apply to unformalized polyamorous relationships,” although it prevents non-exploitative poly and ethically non-monogamous families from ceremonially formalizing their commitments.
Opinion:
That’s where I tend to differ, personally (and my opinion here likely does not reflect that of some of the places this article will be posted). To pre-emptively address speculation, I am not in a poly relationship, and don’t identify that way, and consider it very unlikely (though not inconceivable) that that might change at some point in the future. So I don’t speak for poly people — only as an ally of those I’ve known, and to the limit of my understanding of poly issues.
But although I can understand the sense of relief that poly people in Canada experience with this ruling, I do feel that this ruling institutionalizes an obstacle that will become a serious issue later. And that this result pushes the question far enough into the closet that I’m not sure it will be appropriately addressed in our lifetimes.
I’m not convinced that coercion, abuse, child exploitation, human trafficking and the other things that we associate with polygamy are necessarily intrinsic to poly relationships, and so the status quo of conflating the two in law (despite the acknowledgment of responsibly polyamory) and society remains relatively unchanged. I do concede that the existing laws to address those things don’t currently adequately enable intervention — that absolutely needs to change. And it won’t, because the Canadian government will rest easy on this verdict (barring a different ruling at a higher level), and see the inadequacies of those laws as not having to be addressed.
But I don’t see why people in non-exploitive polyamorous and ethical non-monogamous relationships should be prevented from making a formal and legal commitment to each other, complete with financial benefits that recognize the differences and challenges poly families face. (I do, however, recognize that there are many different types of poly families, so when/if we get to that, it too will be a one-size-does-not-fit-all situation, and not for me to define.) But the bottom line is that non-harmful polygamous families can and do exist, and in the eyes of our society, they remain conflated with harm that is more intrinsic to a particular belief system than to poly formation of families.
Limits on Belief
And so we return to the heart of the ruling: that polygamy is a part of the defendants’ religious freedom, but that law and judiciary have the right to limit that freedom.
Some very bad ideas have been perpetrated in the name of faith — honour killings, the Crusades, residential schools, female genital mutilation — and just about any faith you can think of has shown a capacity for cruelty and self-interest. Belief can also be a healthy, healing, community-building thing as well, so I’m not assailing all faith nor all believers. But I have come to the conclusion that the more essentialist or fundamentalist a faith becomes, the more capable it is of adopting a hierarchy of “moral” which can excuse abuse and cruelty in the name of what is thought to be a higher cause. So from that standpoint, this ruling is more or less positive — even though I’m never very particular of any entity being given the ability to overrule Canada’s Charter of Rights and Freedoms.
But something else this conflict has illuminated is that to many among the religious right, polygamy is actually somewhat acceptable — especially if compared to same-sex marriage. Many founders of the Jewish and Christian faiths were polygamists, and in scriptures like 2 Samuel 12:8, it’s even said (through a prophet) that God himself blessed King David with many wives… and would send more if that wasn’t enough. And elsewhere it says that the only limit is that there should not be too many (which was apparently Solomon’s undoing, having 700 and also concubines) and that after marrying the second, he shouldn’t deprive the first. Jesus himself stated that his teachings did not supersede that law when he addressed divorce in Matthew 19:3-6 but failed to discuss scenarios with more than one wife. If far-right people of faith try to define polygamy out of “traditional marriage,” then their own scripture undermines them. And some realize it. It’s curious to read the occasional comment at LifeSiteNews as recently as July of 2011, saying that they find polygamy more “tolerable” (although it’s not a majority opinion).
With all of this said, I’m not convinced that marriage is an unassailably ideal choice or that it should be the preferable choice for building families — and even the “traditional marriage” pushed by the far right as the only acceptable option has an unhealthy focus on “headship of the husband” that can easily be prone to several potential abuses. But the choice to marry should be available equally, and from the standpoint of consistency and social justice, I still think that the outcome of Wednesday’s ruling — which many believe will be appealed to the Supreme Court of Canada — should still concern us.
(Crossposted to The Bilerico Project)
Not long ago, Charles McVety’s transphobic “Don’t Confuse Me” ads about a proposed LGBT-positive curriculum in Ontario made the rounds — first on the National Post (which apologized for running them) and then by Sun Media, which claimed they were free speech champions for doing so. The Toronto Sun and 
